Cassista v. Community Foods, Inc.

Facts

The job and the applicant. In the summer of 1987 Toni Linda Cassista applied for one of three openings at Community Foods, a Santa Cruz health food store founded as a neighborhood collective and normally employing 16 to 17 people. The advertised duties included “running the cash register, stocking 35-to 50-pound bags of grain, carrying 50-pound boxes of produce, retrieving groceries from the warehouse, changing 55-gallon drums of honey, and carrying large crates of milk.” Cassista is five feet four inches tall and then weighed 305 pounds; she had worked in restaurants, managed a sandwich shop, and worked as a nursing home aide. (Cassista v. Community Foods, Inc. (1993) 5 Cal.4th 1050, 1053.)

The hiring process. Applicants were screened in an initial interview and then, if not eliminated, called back before a hiring committee; Cassista was one of eight invited to the second round. Asked near the end of that interview “if she had any physical limitations which would interfere with her ability to do the job,” she said she did not. The positions went to other applicants. (Cassista, supra, 5 Cal.4th at p. 1053.)

The statements at issue. After a later opening also went elsewhere, Cassista asked the personnel coordinator, Will Hildeburn, how she might improve her chances. He said they had hired people with more experience, but “also admitted telling plaintiff that ‘there was some concern about your weight.’” Cassista testified his response was more explicit — that “members were concerned that you couldn’t physically do the work due to your weight” — and denied he had cited any lack of experience. (Cassista, supra, 5 Cal.4th at p. 1054.) At a follow-up meeting Hildeburn apologized and collective members discussed weight and job performance; one described her own weight fluctuations and back pain, another the difficulty of climbing ladders while pregnant and her view that “physical attributes have to be a part of the decision-making process,” but both testified that Cassista’s weight played no role in the decision. (Id. at p. 1054.)

The claim. Cassista filed with the Department of Fair Employment and Housing. Community Foods then offered her a position, which she declined because she did not believe the collective had adequately “educated” itself about the concerns of overweight people. After the Department declined to file, she sued, alleging she was denied employment in violation of the FEHA “in that [they] regarded her as having a physical handicap, i.e., too much weight.” (Cassista, supra, 5 Cal.4th at p. 1054.) A critical feature of the record: she “alleged in her complaint and maintained at trial that despite her weight she is a healthy, fit individual.” (Id. at p. 1066.)

Procedural history

At the close of the plaintiff’s case Community Foods moved for nonsuit on the ground that she had not established she was a handicapped individual under the FEHA; the trial court denied it, apparently chagrined that the issue had not been raised earlier by summary judgment or on the pleadings. (Cassista, supra, 5 Cal.4th at p. 1055 & fn. 3.) The defense then called three collective members and a safety engineer, who testified that the store “would constitute a hazardous workplace” for a person of the plaintiff’s weight given narrow aisles and stepstools. (Id. at p. 1055.) The jury was instructed that the plaintiff had to prove “but for plaintiff’s handicap she would have been hired,” and returned a unanimous defense verdict. (Ibid.)

The Court of Appeal reversed, holding that the evidence established Community Foods regarded the plaintiff’s weight as a physical handicap, and that the but-for instruction was erroneous — once the plaintiff showed weight played a part, the employer had to show it would have made the same decision anyway. Finding the instructional error prejudicial, it remanded for a new trial. (Cassista, supra, 5 Cal.4th at p. 1055.) The Supreme Court granted review “to consider whether, on the record evidence, plaintiff had established a prima facie case of handicap discrimination.” (Ibid.) Because the plaintiff had prevailed below she had not appealed the nonsuit denial, but the issue was properly before the court since the Court of Appeal had necessarily reached it and Community Foods had challenged it in the petition for review. (Id. at pp. 1055–1056, fn. 4.)

One timing point governs everything else: the claim “arose under and is governed by the former law” — the pre-1993 “physical handicap” definition — although the court analyzed it with the 1992 amendments in mind. (Cassista, supra, 5 Cal.4th at p. 1059.) The court also solicited supplemental briefing on the 1992 amendment because neither party had raised it. (Id. at p. 1058, fn. 8.)

Issue

Whether the FEHA “prohibits employment discrimination on the basis of a person’s weight” — and specifically whether, on this record, the plaintiff established a prima facie case of handicap discrimination, either because her weight was an actual physical handicap or because she was regarded as having one. (Cassista, supra, 5 Cal.4th at pp. 1052, 1055.)

Holding

Reasoning

1. A deliberately narrow judicial role. The court opened by disclaiming any policy function: “It is important to emphasize at the outset the limited nature of our inquiry. We do not intend, nor indeed are we at liberty, to define ‘physical handicap’ in terms we believe to be morally just or socially desirable. Our task, rather, is to determine the boundaries of that provision which the Legislature intended.” (Cassista, supra, 5 Cal.4th at p. 1056.) That framing anticipates the eventual legislative response: the court was explicit that if the line were to move, the Legislature would have to move it.

2. The 1973 text and its three categories. The 1973 amendment adding “physical handicap” defined it to include “impairment of sight, hearing, or speech, or impairment of physical ability because of amputation or loss of function or coordination, or any other health impairment which requires special education or related services.” (Cassista, supra, 5 Cal.4th at p. 1056.) The court parsed three categories and read the second narrowly: “[a]mputation,” “loss of function” and “loss of coordination” “all share a common element relating to the body’s basic motor abilities,” so the category “applies essentially to any disabling condition caused by the removal or loss of use of, or lack of control over, the body’s limbs, joints and extremities.” (Id. at p. 1057.)

3. American National criticized but preserved. American National Ins. Co. v. Fair Employment & Housing Com. (1982) 32 Cal.3d 603 had construed “handicap” as coextensive with its dictionary sense — “a disadvantage that makes achievement unusually difficult” — and held high blood pressure qualified. (Cassista, supra, 5 Cal.4th at p. 1057.) The court endorsed Justice Mosk’s dissenting critique that this “virtually ignored not only the statutory language, but also the pertinent legislative history” (id. at p. 1057), quoting his account of the 1973 drafting history at length (id. at pp. 1057–1058). Yet it declined to overrule, because the 1992 Legislature had expressly tied the new definition to American National: “[w]hatever the infirmities in American National . . . a due regard to the Legislature’s mandate for consistency militates against overruling that decision.” (Id. at p. 1059.) The court then limited American National from within, observing that even its “relatively broad holding . . . was informed and limited by the fact that the plaintiff alleged a physiological disorder (high blood pressure) affecting the cardiovascular system.” (Id. at p. 1061.)

4. Harmonizing old law and new. The 1992 amendment, effective January 1, 1993, replaced “physical handicap” with “physical disability,” defined to require a physiological condition that “[a]ffects one or more of the following body systems” and “[l]imits an individual’s ability to participate in major life activities.” (Cassista, supra, 5 Cal.4th at p. 1058.) The court distilled it: “to qualify as physically ‘disabled’ under the new statute the claimant must have, or be perceived as having, a ‘physiological’ disorder that affects one or more of the basic bodily ‘systems’ and limits the claimant’s ability ‘to participate in major life activities.’” (Id. at p. 1059.) It found old and new “remarkably consistent” (id. at p. 1059), because a 1980 FEHC regulation had already adopted substantially the same test, and both the regulation and the 1992 statute descend from the federal Rehabilitation Act by way of the ADA (id. at pp. 1059–1060). Hence the synthesis: “the touchstone of a qualifying handicap or disability is an actual or perceived physiological disorder which affects a major body system and limits the individual’s ability to participate in one or more major life activities.” (Id. at p. 1061.)

5. The weight authorities. Surveying California and federal decisions, the court found near-uniform agreement that weight alone does not qualify. Tudyman v. United Airlines (C.D.Cal. 1984) 608 F.Supp. 739 rejected a bodybuilder’s claim because his condition was not the product of a physiological disorder “e.g, the result of a glandular problem,” but was “self-imposed and voluntary.” (Cassista, supra, 5 Cal.4th at p. 1064.) Cook v. State of R.I., Dept. of MHRH (D.R.I. 1992) 783 F.Supp. 1569 drew the line the California court adopted: “to the extent that obesity, or Cook’s form of obesity, is caused by systemic or metabolic factors and constitutes an immutable condition that she is powerless to control, it may be a physiological disorder qualifying as a handicap. [Citations.] Conversely, to the extent that obesity is a transitory or self-imposed condition resulting from an individual’s voluntary action or inaction, it would be neither a physiological disorder nor a handicap.” (Id. at p. 1064.) The EEOC’s ADA guidance pointed the same way, distinguishing impairments from characteristics such as “height, weight, or muscle tone” that “are not the result of a physiological disorder.” (Id. at p. 1065.) The court acknowledged contrary authority from New York and New Jersey but distinguished it on the ground that “local antidiscrimination laws have widely varying texts and historical antecedents.” (Id. at pp. 1061–1062, fn. 11.)

6. “Regarded as” cannot supply what proof lacks. The plaintiff’s fallback was that she was regarded as handicapped. The court rejected it as a matter of statutory structure: “it is not enough to show that an employer’s decision is based on the perception that an applicant is disqualified by his or her weight. The applicant must be ‘regarded as having or having had’ a condition ‘described in paragraph (1) or (2),’ to wit, a physiological disease or disorder affecting one or more of the bodily systems.” (Cassista, supra, 5 Cal.4th at p. 1065.) The perceived condition “must still be in the nature of a physiological disorder within the meaning of the FEHA, even if it is not in fact disabling.” (Id. at pp. 1065–1066.) This is the holding the Legislature would later target most directly.

7. Application, and no second chance. The record was “devoid of any evidence that plaintiff’s weight is the result of a physiological condition or disorder affecting one or more of the body systems.” Indeed she had affirmatively maintained “that despite her weight she is a healthy, fit individual” — a litigation posture squarely inconsistent with the element she needed. (Cassista, supra, 5 Cal.4th at p. 1066.) Nonsuit should have been granted. And because the physiological-basis requirement “was relatively settled at the time of trial” and she was “clearly on notice of the potential importance of such evidence through the motions of defendants,” she had “received a full and fair opportunity to prove her case” and was not entitled to a new trial. (Ibid.) The decision was unanimous; there was no dissent.

Significance

The most important thing about Cassista today is what the Legislature did to it. Government Code section 12926.1, subdivision (d) provides: “Notwithstanding any interpretation of law in Cassista v. Community Foods (1993) 5 Cal.4th 1050, the Legislature intends (1) for state law to be independent of the federal Americans with Disabilities Act of 1990, (2) to require a ‘limitation’ rather than a ‘substantial limitation’ of a major life activity, and (3) . . . to provide protection when an individual is erroneously or mistakenly believed to have any physical or mental condition that limits a major life activity.” The surrounding subdivisions say the same things more directly. Subdivision (a) declares that California disability law “provides protections independent from those in the federal Americans with Disabilities Act of 1990,” which “provides a floor of protection” only. Subdivision (b) adds that the definitions are to be construed so that workers “are protected from discrimination due to an actual or perceived physical or mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling.” And subdivision (c) states flatly that the state definitions “require a ‘limitation’ upon a major life activity, but do not require, as does the federal Americans with Disabilities Act of 1990, a ‘substantial limitation,’” a distinction “intended to result in broader coverage under the law of this state than under that federal act.” (Gov. Code, § 12926.1, subds. (a)–(d), as amended by Stats. 2022, ch. 28, § 67.)

Three of Cassista’s pillars are therefore no longer safe to rely on. Its use of ADA and Rehabilitation Act authority as controlling guides is displaced by the declared independence of state law. Its alignment with the federal “substantially limits” threshold is displaced by the “limitation” standard. And its narrow “regarded as” analysis — that the employer must perceive a qualifying physiological disorder — is displaced by the protection for those “erroneously or mistakenly believed” to have a limiting condition. Anyone citing Cassista for those propositions is citing superseded reasoning.

What survives is narrower but still real: the basic proposition that weight, standing alone and without evidence connecting it to a physiological condition, is not a protected disability under the FEHA. The Legislature did not add weight to the protected characteristics, and section 12926.1 does not purport to make body size a disability as such. The evidentiary lesson also survives, and is the practical core of the case — a plaintiff who insists she is perfectly healthy has disproved an element of her own claim.

Finally, Cassista is a clean illustration of legislative correction of judicial construction. The court said expressly that it was “not at liberty” to define the term by its own lights (Cassista, supra, 5 Cal.4th at p. 1056); the Legislature took up the invitation and named the case when it did so.

Key quotes

“[W]eight may qualify as a protected ‘handicap’ or ‘disability’ within the meaning of the FEHA if medical evidence demonstrates that it results from a physiological condition affecting one or more of the basic bodily systems and limits a major life activity.” (Cassista v. Community Foods, Inc. (1993) 5 Cal.4th 1050, 1052.)

“[A]n individual who asserts a violation of the FEHA on the basis of his or her weight must adduce evidence of a physiological, systemic basis for the condition.” (Id. at p. 1065.)

“We do not intend, nor indeed are we at liberty, to define ‘physical handicap’ in terms we believe to be morally just or socially desirable.” (Id. at p. 1056.)

“Notwithstanding any interpretation of law in Cassista v. Community Foods (1993) 5 Cal.4th 1050, the Legislature intends (1) for state law to be independent of the federal Americans with Disabilities Act of 1990, (2) to require a ‘limitation’ rather than a ‘substantial limitation’ of a major life activity . . . .” (Gov. Code, § 12926.1, subd. (d).)

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Practice pointer

Open questions

How much of Cassista survives section 12926.1. The statute says the Legislature intends certain things “[n]otwithstanding any interpretation of law” in the case, but does not itemize which passages are abrogated. The core holding that weight alone is not a disability is untouched by its terms; the ADA-alignment, “substantial limitation” and “regarded as” analyses plainly are affected. The boundary between them is a matter for argument.

Weight caused by a physiological condition. The court held such a claim can succeed (Cassista, supra, 5 Cal.4th at p. 1052) but had no occasion to say what quantum of medical evidence suffices, or whether the condition or the weight must be what limits the major life activity.

The burden-shifting question was never reached. The Court of Appeal had held the but-for instruction erroneous and would have shifted the burden to the employer once weight was shown to be a factor (id. at p. 1055). Because the Supreme Court resolved the case on the prima facie element, it did not address that holding.

Bona fide occupational qualification. The safety engineer’s testimony about narrow aisles and stepstools (id. at p. 1055) foreshadowed a BFOQ defense the court never had to reach, though the decision discusses Hegwer and McMillen, where weight standards were upheld on that basis. (Id. at pp. 1061–1063.)